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A 



LEGAL VIEW 



OF THE SEIZURE OF 



MESSRS. MASON AND SLIDELL. 



NEW YORK 
1861. 



n. 






1 

A LEGAL VIEW 



Srimw of Messrs. Pasott auir jlIt&elL 



All the facts of this case have not yet been officially 
communicated. We will assume, however, that the Eng- 
lish mail steam-packet Trent was visited beyond the dis- 
tance of a marine league from the shore, and that the 
neutral waters within that distance were not used by the 
United States' cruiser in watching her opportunity for the 
exercise of a belligerent right in the adjacent seas. 

Mr. Webster, the most distinguished American ex- 
pounder of international law, in his official correspondence 
with Lord Ashburton, declared that " a vessel on the high 
seas, beyond the distance of a marine league from the shore, 
is regarded as part of the territory of the nation to which 
she belongs." He also, in a subsequent letter to the same 
functionary, held the following language : " The ocean is 
the sphere of the law of nations ; and any merchant vessel 
on the seas is by that law under the protection of the laws 
of her own nation, and may claim immunity, unless in 
cases in which that law allows her to be entered or visited." 

The maritime right of visitation and search of neutral 
merchant vessels is a pure belligerent right, and can have 
no existence on the high seas during peace. It is allowed 
by the law of nations only in times of war, 1, for contra- 
band, 2, for military persons, and 3, for despatches. 



England, in the rightful exercise of her discretion, has 
adopted a theory of the present contest in America which 
has given great offence to the United States, although the 
latter were the first to furnish a precedent for its adoption 
by the course pursued in reference to the struggle between 
Spain and her colonies. 

This theory assumes that the Confederate States are a 
nation actually at war with the United States, and having, 
so far as England is concerned, as perfect belligerent rights 
as any other nation whatever. It distinctly implies, — as 
there is no hybrid cross of nationalities known to the law of 
nations, — that Messrs. Mason and Slidell are the citizens of 
an independent nation other than the United States. We 
take it for granted that England will submit to all the 
legitimate consequences, whether injurious to herself or 
not, of her own theory, and that she will never lose sight 
of them in any reclamation she may make for an alleged 
violation of her neutral rights on board the Trent. It must 
be said, however, that the act of arrest, under a claim of 
belligerent right, involves, on the part of the United States, 
an emphatic renunciation of the theory recently adopted by 
their own government. The American Secretary of State, 
on the 30th of May last, in a despatch to the Minister of the 
United States at Paris, made the following explicit decla- 
ration : " The United States cannot for a moment allow 
the French Government to rest under the delusive belief 
that they will be content to have the Confederate States 
recognized as a belligerent power by States with which this 
nation is in amity. No concert of action among foreign 
states so recognizing the insurgents can reconcile the 
United States to such a proceeding, whatever may be the 
consequences of resistance." 

If then, Messrs. Mason and Slidell are to be regarded 
as insurgent citizens of the United States, they are politi- 
cal offenders, and as such not only incapable of subjecting 
the neutral vessel on which they embark to the operation 



of the right of search, but distinctly excepted from the pro- 
visions of the extradition treaty. The most cherished tra- 
ditions of the history of England forbid her to sanction the 
forcible seizure of such persons while under the protection 
of her flag. Had they been undoubted citizens of the 
United States, guilty of atrocious felony, they could not 
have been seized by the United States on board the Trent 
on the high seas, without a flagrant infraction of the rights 
of neutral jurisdiction. It is perfectly clear that the arrest 
of such criminals could only be effected by a resort to the 
due process of the municipal law of England. 

Were Messrs. Mason and Slidell, considering all the cir- 
cumstances of the situation and voyage of the Trent, liable 
to capture as public enemies, and yet by a singular anomaly 
subject to punishment, under the municipal regulations of 
the United States, as domestic traitors ? 

Let us now direct our special attention to the English 
cases of capture for the transportation of despatches and of 
military persons, as they are generally appealed to for the 
justification of the present seizure. 

What are despatches ? Sir William Scott, in the case 
of the Caroline,* defined them to be. communications " on 
the public business of the State, and passing between pub- 
lic persons for the public service." We are not yet accu- 
rately informed that any communications answering to this, 
or indeed to any other description, were in course of con- 
veyance, in the instances before us. It would be an abuse 
of language to designate a letter of credence a despatch. 

In a popular sense, every rebel, private or public, in all 
his communications, is necessarily hostile as against the 
United States ; and no act of his can be more offensively 
hostile than an attempt on his part to establish relations of 
amity between his government and a foreign State. But 
despatches must be of a hostile and illegal character, in the 

* 6 Rob. Adro. Rep., p. 461. 



sense of international law,* in order to subject the carrying 
ship to the appropriate penalty of confiscation. 

In the examination of the cases, we must never lose 
sight of tne nature of the voyage of the vessel. Was her 
voyage between the ports of one of the belligerents ? Was 
it from a neutral port to a port of one of the belligerents ? 
Was it from a port of one of the belligerents to a neutral 
port, or was it between two neutral ports ? 

The carrying by a neutral ship of despatches of the en- 
emy, from his colonial port and colonial government to his 
home government, was decided by Sir William Scott, in the 
case of the Atalanta,f to be a criminal interposition in the 
war, impressing a hostile character upon the ship and sub- 
jecting her to the penalty of confiscation. Such despatches, 
he declared, must be of a hostile character on every a priori 
presumption. 

The same illustrious judge, however, in 1808, during the 
war between England and France, in the case of the Caro- 
line,$ an American vessel, seized for conveying, from the 
neutral port of New York to Bordeaux, despatches for the 
French government from the French ambassador and consul 
resident in the United States, decreed restitution of the 
vessel. But inasmuch as, in his opinion, a neutral mer- 
chant vessel is under no obligation to carry the enemy's 
despatches to the enemy's port and government, he admitted 
the captor's right to inquire, before a prize-court,, into the 
nature of the despatches, — there being no conclusive pre- 
sumption of their hostile character in this case, as in that 
of the Atalanta. He proceeds to observe : " The neutral 
country has a right to preserve its relations with the ene- 
my, and you are not at liberty to conclude that any com- 
munication between them can partake, in any degree, of the 
nature of hostility against you. The enemy may have his 

* 1 Kent, p. 152. The Madison, Edwards' Adm. Kep., p. 226. 
t 6 Rob. Adm. Rep., p. 440. % Ibid., p. 461. 



hostile projects to be attempted with the neutral State ; 
but your reliance is on the integrity of that neutral state 
that it will not favor nor participate in such designs, but as 
far as its own councils and actions are concerned, will op- 
pose them. 

" And if there should be private reason to suppose that 
this confidence in the good faith of the neutral state has a 
doubtful foundation, that is matter for the caution of the 
government, to be counteracted by just measures of pre- 
ventive policy, but is no ground on which this court can 
pronounce that the neutral carrier has violated his duty by 
bearing despatches, which, as far as he can know, may be 
presumed to be of an innocent nature, and in the main- 
tenance of a pacific connection." 

In 1810, during the hostilities between England on the 
one hand and France and Denmark on the other, an Ens;- 
lish cruiser captured the neutral American ship Madison,* 
on her voyage home from a French port. She was found to 
be the carrier of despatches from the government of Den- 
mark tothe Danish consul-general, resident at Philadelphia. 
Sir William Scott held that, under the circumstances of the 
case, the conveyance of the despatches did not affix a hos- 
tile character to the ship, and that, though the ship was 
justly subject to the inconvenience of seizure and detention 
for inquiry into the character of the despatches, she was not 
liable to confiscation. 

He expounds the law, in this case, in the following 
language : " Now, I am of opinion, that a communication 
from the Danish government to its own consul in America, 
does not necessarily imply any thing that is of a nature hos- 
tile or injurious to the interests of this country. It is not 
to be so presumed ; such communications must be supposed 
to have reference to the business of the consul-general's 
office, which is to maintain the commercial relations of 

* Edwards' Adni. Eep., p. 224. 



Denmark with America. If such communications were 
interdicted, the functions of the official persons would cease 
altogether. It has been said that this communication of 
the Danish government, with one of its delegates in another 
country, through the medium of the American minister at 
Paris, is a matter in which the neutral government is not 
at liberty to interpose and carry on, and that the neutral 
government is not to concert measures with the enemy, for 
the purpose of assisting in communications relating solely to 
his own commerce. But I take this to be a correspondence 
in which the American government is itself interested. A 
Danish consul-general in America, is not stationed there 
merely for the purpose of Danish trade, but of Danish- 
American trade ; his functions relate to the joint commerce 
in which the two countries are engaged, and tne case, there- 
fore, falls within the principle which has been laid down in 
the case of the Caroline, in regard to despatches from the 
enemy to his ambassador resident in a neutral country. In 
the transmission of these papers America may have a con- 
cern and an interest also ; and, therefore, the case is not 
analogous to those in which neutral vessels have lent their 
services to convey despatches between an enemy's colony and 
the mother country." 

The case of the Rapid,* which occurred in 1810, was 
that of a neutral ship, on a voyage from a neutral country 
to a port of a hostile nation, and carrying despatches or 
papers, which, if not strictly despatches, were deemed 
" mischievous in their own nature." These were concealed 
in an envelope, addressed to a private person at the port 
of destination. They were to be forwarded by him to the 
minister of the colonies of another hostile nation. They 
were proceeding to the home government of the enemy, 
from an agent of the enemy stationed in a neutral country 
by the governor-general of the colonies of the enemy, with 

* Edwards' Adm. Rep., p. 228. 



a view to relieve his colonial trade, and not to establish 
official relations with the government of the neutral coun- 
try. They were conveying intelligence of importance. The 
master of the ship received them with a packet of private 
letters, and without knowledge of their contents. Sir Wil- 
liam Scott, while admitting the justice of the detention of 
the ship, refused sentence of confiscation. In the course of 
his opinion he made the following observations : " I should 
certainly be extremely unwilling to incur the imputation of 
imposing any restrictions upon the correspondence which 
neutral nations are entitled to maintain with the enemy, 
or, as it was suggested in argument, to lay down a rule 
which would in effect deter masters of vessels from receiving 
on board any private letters, as they cannot know what 
they may contain. But it must be understood, that where 
a party, from want of proper caution, suffers despatches to 
be conveyed on board his vessel, the plea of ignorance will 
not avail him. His caution must be proportioned to the 
circumstances under which such papers are received. If he 
is taking his departure from a hostile port in a hostile 
country, and still more, if the letters which are brought to 
him are addressed to persons resident in a hostile country, 
he is called upon to exercise the utmost jealousy with re- 
gard to what papers he takes on board. On the other hand 
it is to be observed, that where the commencement of the 
voyage is in a neutral country, and it is to terminate at a 
neutral port, or, as in this instance, at a port to which, 
though not neutral, an open trade is allowed, in such a case 
there is less to excite his vigilance ; and, therefore, it may 
be proper to make some allowance for any imposition which 
may be practised upon him." 

It may possibly be inferred from these dicta, that, in 
the opinion of Sir William Scott, a neutral vessel, even on 
a voyage from one neutral port to another, engaged, with 
the knowledge of her master, in rendering to the enemy 
the special war-service of conveying to his government hos- 



10 

tile despatches from his own functionary, relating not to 
intercourse with a neutral government, but to the com- 
merce and security of his colonial dominions, would be ex- 
posed to forfeiture. 

A mere obiter dictum of Sir William Scott in 1807, in 
the case of the Orozeinbo,* has been cited as applicable to 
the case of the seizure of Messrs; Mason and Slidell. There 
is no parallelism in the facts of the two cases, and it is 
impossible to extend the reasoning in the one to the other. 
The Orozembo was a neutral ship really chartered by the 
enemy's government in the enemy's couutry. Thence she 
went to a neutral port only with a view to assume an ulte- 
rior colorable destination. At that neutral port she was 
ostensibly chartered to proceed to another neutral port, 
while she took on board, with the real purpose of transport- 
ing them to a colony of the enemy, not merely military per- 
sons in the service of the enemy, but other persons to be 
employed in civil departments in the colonial government 
of the enemy. With reference to these civil agents, Sir 
William Scott observed : " Whether the principle would 
apply to them alone, I do not feel it necessaiy to determine. 
I am not aware of any case in which that question has been 
agitated ; but it appears to me on principle, to be but rea- 
sonable that, whenever it is of sufficient importance to the 
enemy, that such persons should be sent out on the public 
service, at the public expense, it should afford equal ground 
of forfeiture against the vessel, that may be let out for a 
purpose so intimately connected with the hostile operations." 
He added : " But I will state distinctly that the principle 
on which I determine this case is, that the carrying military 
persons to the colony of the enemy, who are there to take 
on them the exercise of their military functions, will lead 
to condemnation." 

It is obvious that the dictum of the judge in reference 

* 6 Kob. Adm. Rep., p. 430. 



11 

to the civil agents was based, both on their destination to 
the enemy's colony, and on their employment in that quar- 
ter, for purposes directly auxiliary to the war, as their func- 
tions necessarily related to the safety of the colonial posses- 
sions which the other belligerent threatened to attack. As 
this class of persons has not been designated, in any of the 
proclamations of war or neutrality of England, as one not 
to be transported with immunity by the vessels of a neutral 
power, it is but just to infer that the English government 
has never sanctioned the dictum. 

It would seem that destination to the enemy's dominions, 
— or to a country in the occupation of his armed forces, — 
of contraband goods and of military persons, who are some- 
times called quasi-contraband, is necessary to constitute 
their transportation by a neutral ship an international of- 
fence, for it is difficult to perceive how, without such desti- 
nation, they can be carried for the direct use or service of 
the enemy in w r ar. The English proclamation of war of the 
25th March, 1744, silent as to despatches, was restricted 
in terms to the carrying by neutral ships of contraband 
goods and soldiers " to any of the territories, lands, planta- 
tions, or countries of the French king." There appears no 
reason why destination to the enemy's country should not 
likewise be necessary to create the full character of hostile 
despatches, which, in more modern times, have been assimi- 
lated to contraband. Despatches cannot be justly consid- 
ered hostile without having a direct and immediate ten- 
dency to assist the enemy in the war. 

Even the carrying of military persons, and to the en- 
emy's country, does not necessarily render a neutral ship 
liable to condemnation in the character of a hostile trans- 
port. The Friendship,* a neutral vessel, chartered under 
a contract with the enemy's government, sailed for the en- 
emy's port, from a neutral port in America, with effective 
military officers and mariners returning from the service of 

* 6 Rob. Adm. Rep., p. 420. 



\ 

12 

the enemy in his colonies in the West Indies. She was 
condemned, in 1807, as an enemy's transport by Sir Wil- 
liam Scott, who, in the course of his opinion, made the fol- 
lowing observations : "It would be a very different case if 
a vessel appeared to be carrying only a few invalid soldiers, 
or discharged sailors, taken on board by chance and at their 
own charge. * * :;: " It is asked, will you lay down a 
principle that may be carried the length of preventing a 
military officer in the service of the enemy, from finding his 
way home in a neutral vessel from America to Europe ? If 
he was going merely as an ordinary passenger, as other pas- 
sengers do, and at his own expense, the question would pre- 
sent itself in a very different form. Neither this court nor 
any other British tribunal has ever laid down the principle 
to that extent." 

The immunity of a neutral ship, — if not engaged in a 
special transport service on account of the government of 
the enemy, — bound to a port of the enemy, and carrying 
even an able general of his, is urged by the great authority 
of Continental Europe, Hautefeuille,* in these words : " I 
have said that, in certain cases, a neutral ship may right- 
fully transport military persons in the service of one of the 
belligerents. A vessel — a packet-ship,-)* for example — is 
about to sail from a neutral port to a port of one of the 
nations at war. Individuals, belonging to the army of the 
sovereign of the place of destination, appear one by one, 
(isoMment,) and engage passage on board of this vessel. 
There is in this circumstance, in my opinion, no interference 
with the war, {immixtion aux hostilit'is,) no act in viola- 
tion of belligerent rights, even though there be among the 
passengers an able and skilful general, whose presence on 
the theatre of action may be the means of changing the for- 

* Des droits et des devoirs des nations neutres en temps de guerre 
maritime, tonic 2, p. 456. 

t A ship that sails at stated times for carrying mails or passengers. 



13 

tunes of the war. The adverse belligerent cannot take 
offence in such a case, and hold the neutral to an account. 

" It is to be distinctly remarked that the government, 
to which the military persons transported belong, interferes, 
in point of fact, in no way whatever. It keeps itself en- 
tirely aloof. The belligerent may, it is true, derive an ad- 
vantage from the act of the neutral, but it is an indirect 
advantage ; and if it were necessary to prohibit nations at 
peace from doing any thing whatever, through means of 
which nations at war might gain an advantage of this na- 
ture, it is obvious that the former could no longer have any 
intercourse whatever with the belligerents. For all inter- 
course springs from that mutual advantage which the par- 
ties engaged in it are supposed to enjoy. Navigation and 
commerce with belligerents would be completely destroyed, 
so far as neutrals are concerned. I think that I have suf- 
ficiently shown that the only acts prohibited are such as 
have a direct and immediate reference to the war, and not 
such as may have a remote and indirect connection with it. 
In the case we have supposed, the ship has violated no 
neutral duty, even though the captain knew all the circum- 
stances relating to his passenger." 

These opinions are in striking accordance with the gen- 
eral views which Chief-Justice Marshall expressed in the 
case of the Commercen,* while discussing the principles of 
the law of contraband and quasi-contraband. His language 
is as follows : "It is not true that every species of aid 
given to an enemy is an act of hostility which will justify 
our treating him who gives it, or his vessels, as hostile to 
us. * * * * That a neutral is friendly to our enemy, and 
continues to interchange good offices with him, can furnish 
no subject of complaint ; for then all commerce with one 
belligerent would be deemed hostile by the other. The 
effect of commerce is to augment his resources, and enable 

* 1 Wheaton, p. 382. 



14 

him the longer to prosecute ihe war ; but this augmenta- 
tion is produced by an act entirely innocent on the part of 
the neutral, and manifesting no hostility to the opposing 
belligerent. It cannot, therefore, be molested by him while 
the same good offices are allowed to him, although he may 
not be enabled to avail himself of them to an equal degree. 
It would seem, then, that a remote and consequential effect 
of an act is not sufficient to give it a hostile character ; its 
tendency to aid the enemy in the war must be direct and 
immediate." 

The principle on which the law of nations has de- 
nounced the penalty of confiscation against the merchant 
vessels of a neutral power, if engaged, in certain cases, in 
the transportation of the enemy's citizens or despatches, is 
that the act aids the enemy and injures his adversary, in 
violation of the duties of neutrality. This principle is 
made the prolific parent of many rhetorical deductions of 
an unlimited and indefinite nature, in the effort to maintain, 
by the law of nations, the right of the seizure of Messrs. 
Mason and Slidell. It is urged, for example, that the con- 
veyance of ambassadors of the enemy to the courts of other 
countries may in its consequences, in your estimation, be 
of greater assistance to him and more dangerous and hurt- 
ful to you than the transportation of armed forces to his 
country, and that, therefore, you have a stronger right to 
prevent it. Again, it is claimed that the carrying of the 
enemy's despatches and of his bearers of despatches may 
be considered an act of such twofold noxiousness as to en- 
title you to either the forfeiture of the erring ship herself, 
by an admiralty tribunal administering international law, 
or to the seizure of the enemy-citizens bearing despatches, 
with a view to their punishmeut, under your own political 
authority. It is even further claimed that you have the 
right to seize, on board a neutral vessel on the high seas, 
enemy-citizens suspected of conceiving such despatches as 
may impart an additional false coloring to the mistaken 



15 

views already entertained by foreign courts of your domestic 
hostilities. 

These expanded deductions are not worthy of serious 
consideration, for they merely tend to show not what the 
law of nations really is. but what, for the exigencies of the 
moment, it ought to be. The simple act of the transporta- 
tion of the enemy's citizens or of his despatches, by the 
merchant ship of a neutral power, is not sufficient, in inter- 
national law, to make her forfeit the immunities of an hon- 
est neutral. On the contrary, she is exempt from capture 
and condemnation, unless from the military character of the 
enemy's citizens on board, or from the hostile nature of his 
despatches, and other circumstances, the direct and imme- 
diate, not the remote and consequential, effect of the act 
of transportation is to assist the enemy in the war. Even 
Sir William Scott, as we have seen, intimates that the 
transportation to the enemy's port, of his officers and 
soldiers returning from colonial service, and of his de- 
spatches, relating solely to the administration of the affairs 
of his colonies, does not, in all cases, affix a character of 
hostility to the vessel of a neutral power. In every case 
of the carrying of military persons, or hostile despatches, 
of the enemy by the merchant vessel of a neutral power, 
where Sir William Scott did not decree restitution, the port 
of departure, or the port of destination, or both were with- 
in the enemy's jurisdiction ; and the transport service was 
either for military persons passing between different parts 
of the enemy's dominions, or for hostile despatches passing in 
like manner and relating to the domestic concerns of those 
dominions, and not to their foreign intercourse with a neu- 
tral government. The loosest dicta of Sir William Scott 
in reference to belligerent rights were all uttered in cases 
affecting communications, direct or indirect, between a 
mother country and her colonies. We are not aware that 
the case of any neutral vessel on a voyage from one neutral 
port to another was ever brought to adjudication before 



16 

him, for an alleged infraction of neutral obligations in 
transporting military persons or hostile despatches of the 
enemy. 

Many an act of lawful assistance, in a consequential 
way. can be given by an impartial neutral power to one 
belligerent without injury, in the eye of international law, 
to the other belligerent. His case is then the common one 
of damnum absque injuria. The right of a neutral nation 
to hold diplomatic intercourse with either belligerent na- 
tion is unquestioned. The right of a neutral to hold gen- 
eral intercourse with either belligerent is the rule. The 
right of a belligerent to cut off this intercourse is the 
exception. The expounders of international law, in care- 
fully enumerating all the objects for which the belligerent 
right of search is allowed, by a well-known legal maxim, 
necessarily exclude all others. The right of search being in 
derogation of the freedom of the common highway of na- 
tions, and involving penal consequences, must, according to 
another maxim, be strictly confined within the limits as- 
signed by international law. Mr. Madison, as Secretary of 
State, in a despatch to Mr. Monroe, the Minister of the 
United States at London, opposing the doctrine of impress- 
ment, then maintained by England, observed that " no- 
where will she find an exception to this freedom of the 
seas, and of neutral flags, which justifies the taking away 
of any person, not an enemy in military service, found on 
board a neutral vessel." * 

The proclamation of her Majesty, the Queen of England, 
warns her subjects against doing any thing in violation or 
contravention of the law of nations, in the present hostili- 
ties in America, " by carrying officers, soldiers, despatches, 
arms, military stores, or materials, or any article or articles 
considered and deemed to be contraband of war, according 

* See this despatch, dated the 5th of Jan., 1804, in American State 
Papers — Foreign Relations, vol. iii., p. 81. 



17 

to the law or modern usage of nations, for the use or service 
of either of the contending parties." This document, pre- 
pared by the law officers of the crown, was intended for the 
instruction and guidance of her Majesty's subjects. No one 
can seriously argue that the admonition of the proclamation 
against carrying officers and soldiers included private citi- 
zens or persons in the civil service of either of the bel- 
ligerents. The phrase used by the French authorities to 
designate officers and soldiers is hommes de guerre. 

The historical precedent most strenuously insisted on to 
justify the present seizure is of a somewhat remote date, 
and yet it was brought before a judicial tribunal. It is de- 
rived from the memorable case of Mr. Laurens, the Ameri- 
can commissioner to Holland, who was captured by an 
English cruiser during the American Revolution. He was 
arrested off the coast of Newfoundland on board a vessel 
bound from a port of the revolted American colonies to 
Holland. It has been asserted that the vessel was Dutch. 
Yet from the preponderance of evidence, it seems clear that 
she was not only rebel property, but the property of the 
rebel American Congress. England asserted that the ex- 
amination of the papers of Mr. Laurens disclosed, beyond 
all doubt, the previously suspected fact that, under the au- 
thority of Congress, he was about to conclude a commercial 
treaty with the city of Amsterdam. A disavowal of the 
transaction having been in vain demanded by England of 
Holland, hostilities ensued. For some time before this oc- 
currence a latent enmity had existed between the two 
countries, from an undue partiality alleged to have been 
shown by the Dutch to the Americans.* The vessel on 
which Mr. Laurens took his passage certainly did not de- 
part from a neutral port. If she was American, all analogy 
to the case of the seizure on board the Trent ceases. If she 
was a Dutch vessel, the seizure on board of her was a vio- 

* Hughes' Hist, of England, vol. Hi., p. 57. 
2 



18 

lent measure resorted to by England on the ground of a 
breach of neutrality by the government of Holland itself. 
This proceeding cannot be regarded as a pacific step taken, 
under a right of search, in consequence of the unneutral 
conduct of a vessel sailing under the flag of a strictly im- 
partial neutral power. Assuming that the United States 
have intercepted despatches on board the Trent, we cannot 
believe that they will afford a casus belli against England, 
by implicating her character as an honest neutral. 

Professor Theophilus Parsons and the Hon. Edward 
Everett have cited the following passage contained in the 
opinion of Sir William Scott in the case of the Caroline, as 
authority for the arrest of Messrs. Mason and Slidell : " I 
have before said, that persons discharging the functions of 
ambassadors are, in a peculiar manner, objects of the protec- 
tion and favor of the law of nations. The limits that are 
assigned to the operations of war against them, by Vattel, 
and other writers upon those subjects, are, that you may 
exercise your right of ivar against them, wherever the char- 
acter of hostility exists : you may stoj) the ambassador of 
your enemy on his passage." What did Sir William Scott 
intend by this oft-quoted declaration ? Simply, that you 
may stop not only a private citizen, but even the ambassa- 
dor of your enemy on his passage, in certain cases warranted 
by the law of nations. Sir William Scott having never 
even asserted the right to stop the ambassador of your ene- 
my on his passage in a neutral vessel on the high seas, there 
is no ground whatever to invoke his authority as justifying 
the seizure in the instance before us. Here we have an 
ambassador of the enemy arrested on his voyage on the high 
seas, not only in a neutral vessel, but in a neutral vessel 
bound from one neutral port to another. In the words of 
Vattel, " on the breaking out of a war we cease to be under 
any obligation of leaving the enemy in the free enjoyment 
of his rights ; on the contrary, we are justifiable in depriv- 
ing him of them for the purpose of weakening him, and re- 



19 

ducing him to accept of equitable conditions. His people 
may also be attacked and seized wherever we have a right 
to commit acts of hostility. Not only, therefore, may we 
justly refuse a passage to the ministers whom our enemy 
sends to other sovereigns ; we may even arrest them if they 
attempt to pass privately, and without permission, through 
places belonging to our jurisdiction. Of such proceeding 
the last war furnishes a signal instance. A French ambas- 
sador, on his route to Berlin touched, through the impru- 
dence of his guides, at a village within the electorate of 
Hanover, whose sovereign, the King of England, was at war 
with France. The minister was there arrested, and after- 
wards sent over to England. As his Britannic Majesty had in 
that instance only exerted the rights of war, neither the court 
of France nor that of Prussia complained of his conduct." 
The former practice of England of impressing, by her 
cruisers, seamen, being English subjects, in time of war, on 
board of neutral merchant vessels, on the high seas, has been 
referred to as estopping England from any complaint in the 
affair of the Trent. The main reliance of England, in all 
her gigantic struggles, has been, from the nature of her in- 
sular position, her maritime power. She required men. 
On the plea of necessity for her safety and on the feudal 
principle of indissoluble allegiance, England claimed the 
right and exercised the practice of impressment. This was 
one of the causes of the last war between England and the 
United States. That war terminated without any express 
renunciation of the right. The practice of impressment, 
however, has been abolished by the existing laws and regu- 
lations for manning the royal navy, and cannot now be exer- 
cised on the seamen of England even in her own merchant 
service. In 1842 the United States sought a public dis- 
claimer of the right from the special envoy of England to 
Washington, but he had no authority to make stipulations 
on the subject. He and his country, however, received, 
without objection from the Secretary of State of the United 



20 

States, the declaration, as the only rule to be hereafter sub- 
mitted to by the Government of the United States, " that 
in every regularly documented American merchant-vessel 
the crew who navigate it will find their protection in the 
flag which is over them." 

Under such circumstances as these, would it be con- 
sistent with the honor and dignity of England to permit 
the United States' Government to avail itself of a monarchic 
doctrine which has been resisted with all the energy of the 
Eepublic, in war as well as in peace, and which has ceased 
for more than half a century to be enforced ? Can it be 
supposed that England will go yet farther, and acquiesce in 
the application of this doctrine to those persons who have 
never been declared to be its objects by any pretended 
ancient or modern law or usage of nations ? Here surely 
we may apply the official language of the great statesman 
of Massachusetts, and, with a change of but three of his 
words, declare that England will take the liberty of bringing 
the cabinet of Washington into the presence of its own pre- 
decessors, and of citing for its consideration the conduct 
of the Republican Government itself. 

The declaration to which we have just referred was ut- 
tered in 1850 by Mr. Webster, in his reply to the Chevalier 
Hulsemann, who had complained of the act of the United 
States in despatching abroad an agent to watch for a favor- 
able moment to recognize the Hungarian republic, and to 
conclude with it a treaty of commerce. That reply then 
expressed the general sentiment of the Government of the 
United States, in regard to neutral rights and neutral du- 
ties, and its invariable policy in its foreign relations. We 
will make from it the following extract, supposing that a 
nation may be morally bound by the rules of conduct which 
it has prescribed to others : " It is the right of every inde- 
pendent state to enter into friendly relations with every 
other independent state. Of course, questions of prudence 
naturally arise in reference to new states, brought by sue- 



21 

cessful revolutions into the family of nations ; but it is not 
to be required of neutral powers that they should await the 
recognition of the new government by the parent state. 
No principle of public law has been more frequently acted 
upon, within the last thirty years, by the great powers of 
the world, than this. Within that period, eight or ten new 
states have established independent governments, within 
the limits of the colonial dominions of Spain on this conti- 
nent ; and in Europe the same thing has been done by Bel- 
gium and Greece. The existence of all these governments 
was recognized by some of the leading powers of Europe, 
as well as by the United States, before it was acknowledged 
by the states from which they had separated themselves. 
If, therefore, the United States had gone so far as formally 
to acknowledge the independence of Hungary, although, as 
the result has proved, it would have been a precipitate 
step, and one from which no benefit would have resulted 
to either party ; it would not, nevertheless, have been an act 
against the law of nations, provided they took no part in 
her contest with Austria." 

No single nation can make a law of nations. Let us, 
therefore, inquire in what light the great powers of Conti- 
nental Europe will regard the seizure of Messrs. Mason and 
Slidell. Those powers, no less than the United States, 
have cast upon the court over which Sir William Scott pre- 
sided, — a court which was the great oracle of England, — the 
imputation of making interpolations in the law of nations, 
with a view to extend the belligerent rights of the chief 
maritime nation of the world. France, speaking by the 
mouth of her great authority, Hautefeuille, whom we have 
already cited, in that portion of his work devoted to a con- 
sideration of the law governing the transportation of de- 
spatches, expresses dissent from the opinions of Sir William 
Scott on the subject, as carrying too far the rights of bel- 
ligerents, and holds the following language : " I can give 
but little weight to the opinion of Sir William Scott. As 



22 

the official organ of the English admiralty, he was com- 
pelled to maintain the doctrines of his own country ; he 
has adorned them with all the lustre of his learning and 
talent. But the adoption of his system would put an end 
to all correspondence in time of war between neutrals and 
belligerents, and render it exceedingly difficult even between 
those nations simply witnessing the struggle with the ut- 
most impartiality, except through the intervention of the 
strongest belligerent." 

Hautefeuille proceeds to discuss, in the following lan- 
guage, the question of the transportation of despatches : 

" Despatches may be conveyed from one neutral port to 
another neutral port ; from a neutral port to a port in the 
possession of the belligerent ; from a port of the belligerent 
to a neutral port, or, finally, from a port of the belligerent 
to some other point in like manner subject to the authority 
of the same sovereign, or occupied by his armies. It seems 
to me clear that we should discard from the discussion the 
first three supposed cases : whenever the place of departure, 
or the place of destination, is a neutral country, the con- 
veyance of the despatch is, in my opinion, an innocent act 
— the neutral conveying the despatch commits no violation 
of his duties as a neutral. It is necessary to add a few ob- 
servations as to the last case, where the despatch is sent 
from a place under the authority of the belligerent to a 
port also subject to his jurisdiction. 

[1.] " One of the belligerents may charter a neutral ves- 
sel for the special purpose of transmitting an important de- 
spatch to a remote point of his own territory, — to a colony, 
— to a fleet on a station far from the mother country. 

[2.] " But it may also happen, and this is the most fre- 
quent case , that this letter is sent through means of a neu- 
tral vessel employed in performing a common mail service, 
engaged alike in the conveyance of private and of public 
correspondence ; and performing this service not only for a 
particular object, but constantly and at stated and regular 



23 

intervals. Such are packet-ships generally, and particu- 
larly those engaged in the conveyance of despatches. 

[3.] " It is customary among all maritime people when 
a merchant ship is setting sail for a distant port, for the 
postal department of the government to consign to the care 
of the captain all letters addressed to the place of destina- 
tion and to the ports in its vicinity. The captain cannot 
refuse, without neglect of duty, to accept this responsibility. 
He thus finds himself the guardian, as it were, of the de- 
spatches intrusted to his care. The belligerent may make 
use of this channel for the transmission of his despatches. 

" Is the neutral ship guilty in these three cases ? Does 
it, in these three instances, commit an act which will ren- 
der it liable to the forfeiture of its rights as a neutral ? a 
direct act of war ? In the first case, I do not hesitate to 
answer the question in the affirmative, even though the 
captain be ignorant of the contents of the despatches which 
he undertakes to carry. It is clear, in point of fact, that 
the captain must be apprised of the nature of the service 
which he is called on to perform. Chartered in a port of 
the belligerent, by the belligerent government or its agents, 
for a place under the authority of the same belligerent, and 
to convey a despatch, he cannot fail to consider himself a 
bearer of despatches, a sub-agent, of this government. He 
cannot conceal from himself the fact that he is about to 
perform an important service in behalf of the belligerent ; 
for no other than a despatch of very great importance could 
suggest such precautions. If, then, he accepts this commis- 
sion, he passes, in point of fact, into the service of the bel- 
ligerent who employs him. He commits an act of the same 
nature with the transportation of troops, that is to say, an 
act of direct hostility, which causes him to forfeit his neu- 
tral character, to lose the privileges of his nationality, and 
which renders him liable to be treated as an enemy, by the 
other belligerent. 

" It matters little whether the commission be volunta- 



24 

rily assumed, or whether it be imposed upon the agent by- 
violence ; in either event the rule laid down in the preced- 
ing paragraph may be applied to him. 

" Does the same principle prevail in the two other cases ? 
I think not. The packet-ship engaged in the mail service, 
receives all letters and all despatches delivered to it by the 
department, without any exception. It acts in this way 
with no special object in view ; it is not in the employment 
of the belligerent State ; it does nothing but discharge the 
duty which it is expected to fulfil in time of peace as well 
as in time of war. 

" If, among the letters which it conveys, there be found 
hostile despatches, {depeclies de guerre) whatever their im- 
portance, the ship has failed to perform no duty of neu- 
trality. It has not forfeited its national character, since it 
has done nothing but execute the commission confided to 
it, by its own government, by a neutral government, — a 
commission entirely consistent with the duties of neutrality. 
Moreover, it may be affirmed that it has performed no act 
in violation of belligerent rights." 

Our author, after giving various illustrations of these 
views, meets the objection that the transportation, by a 
neutral merchant-ship of despatches, for one of the bellig- 
erents, may, under circumstances of conclusive legal inno- 
cence, nevertheless be an important service rendered to him, 
and a very injurious act to the other. " I admit this con- 
sequence," he adds ; " I even suppose the act to be much 
more injurious than the transportation of soldiers ; but the 
injury sustained is simply the indirect result of the service 
performed by the neutral, of the use which he has made of 
his freedom of action, of his independence, and of his rights. 
His duty imposes on him but two restrictions, the one forc- 
ing him to abstain from direct acts of war, and the other to 
withhold from the parties engaged in hostilities, articles 
contraband of war." 

His final summary is thus expressed : 



25 

" I think, then, that I may safely conclude : 1. That 
the conveyance of the letters and despatches of belligerents, 
— whether by regular mail packet-ships, or by the first ves- 
sel setting sail, according to the universal practice of mari- 
time nations before the employment of special ships for the 
transmission of public and private despatches, — is perfectly 
innocent, and can, in no case, be considered either an in- 
fraction of the duties of neutrality, or even as a contraband 
trade ; 2. That the neutral ship chartered by one of the 
belligerents, or seized by him, and then sent in his service, 
from one of his ports to some other place under his jurisdic- 
tion, for the special purpose of conveying a hostile despatch, 
is guilty of a violation of the duties of neutrality, by taking 
a direct and active part in the war, — and that, consequent- 
ly, it may be treated as an enemy, by the other belligerent." 

If the law of nations be so incontestably in favor of the 
seizure as the United States' journals now claim, — with a 
unanimity and fervor in strange contrast to their first in- 
stinctive allusions to the affair, — it shows that the President 
and Cabinet were either ignorant of the plainest rule of the 
law of nations, or supine in the interest of the country, for 
it appears that they neither authorized nor directed a 
seizure in this particular or any kindred case. 

It has been assumed, and probably with truth, that the 
master of the Trent received Messrs. Mason and Slidell on 
board with a knowledge of the reputed diplomatic capacity 
of each, the one an ambassador, — or, to speak more correctly, 
a public minister or commissioner, — of the Confederate 
States to England, and the other to France. Was this act 
a wrong in the sense of international law, giving illegal aid 
and comfort to the enemy, — a wrong for which the adverse 
belligerent might take redress into his own hands ? We 
conceive not. We believe that as the Trent was in the 
course of a regular service, bound on a voyage between 
neutral ports, and even away from scenes of war, it was the 
duty of her master to presume conclusively that the mis- 



26 

sions of Messrs. Mason and Slidell were innocent when 
judged by the code of nations. He also was aware that 
his sovereign, whose integrity he could not question, had 
publicly proclaimed an equal neutrality between the con- 
tending parties ; and it was not for him to assume that 
any communications between the government either of Her 
Majesty the Queen, or of her ally the Emperor of the 
French, on the one hand, and the ambassadors of the Con- 
federate States on the other, could partake in any degree 
of the nature of hostility against the United States. The 
recognized functions of an ambassador are to promote and 
perpetuate relations of amity between his own government 
and the neutral State to which he is accredited, and not 
to attempt hostile projects with that neutral State. 

It appears to us that we must in a great measure aban- 
don forever the freedom of the seas and the external inter- 
ests of neutral States, if all intercourse, even diplomatic 
intercourse, between neutral States and the enemy's country 
may be interdicted by the adverse belligerent, — if neutral 
ships, on the high seas, known to be in the regular course 
of their employment between neutral ports, may of right 
be captured and condemned by the adverse belligerent for 
the conveyance of any communication which may be pro- 
nounced a despatch of an offensive tendency to him, — and 
if from those ships, not even brought to adjudication, may 
be forcibly removed any citizen or subject of his enemy 
capable of composing, or carrying, a despatch.* We are 
somewhat surprised that doctrines of this kind have found 
an advocate in the late special champion of neutral rights, 
the United States of America. Our examination of the 

* Mr. Madison, in the very able State paper before referred to, 
portrays vividly the evil consequences of a principle -which -would 
permit the officer of an armed ship of a belligerent power to decide 
in an arbitrary and summary manner, — -without trial before any tri- 
bunal competent to award indemnity for an abuse of power, — whom he 
will abduct from a neutral ship. 



27 

English cases has brought us to the conclusion that Eng- 
land, in the zenith of her manifold and energetic opera- 
tions of war, and with every temptation to extend bel- 
ligerent rights on the ocean, as the supreme maritime 
power of the world, never sought to make interpolations 
such as these in the law of nations. 

PRO LEGE. 

December, 1861. 



LIBRARY OF CONGRESS 



013 700 9S5 1 * 



LIBRARY OF CONGRESS 



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Mi llll III 



